Good lawyering often involves stretching the shape of words and altering their shade to tilt arguments in one's favour. Sometimes the results are unintentionally comical, such as this week when a federal lawyer stood in Ontario Superior Court to proclaim that Ottawa does not, in fact, use solitary confinement in federal prisons.
Believing that requires a virtuoso level of parsing. No attempt to argue that Ottawa's evolving policy no longer rises to the precise United Nations definition of solitary can change the fact our government continues to regularly punish inmates by leaving them alone in frequently decrepit cells for as long as 23 hours a day, with severely restricted human contact.
According to federal statistics, that's what happens to about 4,500 federal inmates in any given year, for an average stint of 24 days.
By claiming that it has improved solitary confinement by offering more exercise and human contact, the federal government is at least implicitly acknowledging that the use and nature of isolation has to change. This counts as progress.
Ending the practice euphemistically known as administrative segregation is a laudable and necessary goal. So why not actually do it? Why not make the policy match the courtroom rhetoric? The government's position appears to be that, since prison is an"extraordinarily dynamic and infinitely problematic environment," truly stopping the use of solitary is not possible.
That strains credulity. Other countries have shown it is possible to operate prisons that maintain order and protect staff and inmates– without sending some to windowless cells where their only interactions are through a slot in the steel door.
This space has long recognized that wardens absolutely need recourse to measures that temporarily separate problem inmates from the general population. But bad things happen where solitary confinement becomes that tool, and its use is left to the discretion of correctional staff.
In the lawsuit pitting it against the government, the Canadian Civil Liberties' Association argues independent oversight of segregation decisions is required and that mentally ill inmates should never be placed in isolation, which should be limited to 15 days in all cases. (The latter is currently being considered by Parliament). They make a persuasive case.
If some form of administrative segregation is to continue to exist, it must be humane, safe, circumscribed and rare. There are dozens of credible studies from around the world showing the deleterious effects of isolation on incarcerated populations.
There's a moral argument against solitary, but here's the utilitarian one: a system designed to rehabilitate shouldn't employ measures that leave its subjects worse off. And if something is doing that, stop doing it.
Prisons can be hazardous, tense, gang-ridden environments ("dangerous and difficult places," in the parlance of Ottawa's lawyers). But that's been true for decades, and the widespread use of solitary confinement hasn't fixed it.
Litigation has a way of focusing the mind, and in recent months Ottawa has implemented multiple policy changes (usually without telling anyone outside the system). Added safeguards have been put in place. It's something, but still not enough.
Isolation can make otherwise healthy people desperately unwell and can lead to more of the violent and aggressive behaviour it aims to curtail. It also exacerbates the consequences of mental illness, which large swaths of Canada's prison population suffer from. This not news, and neither is it controversial. It's why the federal government acknowledged the preponderance of the scientific evidence in court this week, and tried to argue that it has improved solitary, turning it into solitary-lite-enough.
People who find themselves in a federal prison are convicted criminals. They broke the law, and their infraction was serious enough to merit a penalty of more than two years behind bars. The maxim "don't do the crime if you don't want to do the time" is not entirely incorrect. Most of Her Majesty's involuntary guests are difficult people. Many are violent.
But that doesn't mean they deserve to be mistreated in prison. That's not how a civilized society behaves. And we return again to the utilitarian argument: It's not how a society that aims to reduce criminal recidivism behaves.
The Canadian criminal system's ultimate objective is less crime. Our prisons aren't just warehouses of criminals. They are supposed to create the necessary conditions – and offer the appropriate treatments – in order that those who leave prison, as nearly every inmate one day will, do not re-offend, or present a heightened danger to, or burden on, society. Everything we know about solitary confinement indicates it does the opposite.
No amount of rhetorical prowess can obscure that reality.